Sussman v. Jenkins, 2011 U.S. App. LEXIS 6761

Background

Sussman was Wisconsin state-convicted of possession of child pornography and repeated sexual assault of the same minor; trial jurors acquitted him on harmful-material counts.
Defense strategy targeted Scott’s credibility by highlighting inconsistencies in his statements and by introducing prior false allegations against his father.
Defense sought to introduce testimony of prior false sexual-accusation claims against Scott’s father to impeach credibility and motive.
The trial court partially limited the prior-false-allegation evidence and allowed cross-examination about whether Scott had previously denied abuse to a therapist.
Posttrial, the Wisconsin courts denied relief on ineffective-assistance grounds, holding the pretrial motion would have been meritless and that Mitchell’s note would not have changed the outcome.
The district court denied habeas relief but granted a certificate of appealability on ineffective-assistance issues; the Seventh Circuit reversed and remanded for writ of habeas corpus unless retry occurred.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel’s failure to file a pretrial motion to admit prior false-allegation evidence violated Strickland.	Sussman argues prejudice from exclusion; DeSantis factors show probative value.	State says motion would have failed; no prejudice under DeSantis.	Yes; prejudice shown; state court unreasonably applied law.
Whether the Confrontation Clause was violated by excluding or limiting evidence of prior false allegations.	The evidence targeted Scott’s motive to lie and thus essential to confrontation.	State emphasizes rape-shield concerns and risk of confusion; limits were appropriate.	Yes; state court unreasonably limited cross-examination relevant to motive.
Whether Mitchell’s November 1999 therapist’s note was prejudicial, and whether its omission affected the outcome.	Note would impeach credibility and corroborate other testimony.	Note would have been insignificant given other impeachment evidence.	Yes; cumulative impact insufficient; note would have strengthened defense.
Whether AEDPA deference applies and whether Wisconsin appellate decision on prejudice was unreasonable.	Appellate ruling misapplied Confrontation Clause and DeSantis balancing.	Appellate court properly weighed state-law factors; no federal error.	AEDPA deferential review applies; appellate decision was unreasonable under Confrontation Clause.
Whether cumulative error from the two defense counsel deficiencies could reverse the conviction.	Combined impact likely altered the verdict given centrality of Scott’s testimony.	Evidence presented elsewhere would have preserved a lawful outcome.	Yes; cumulative prejudice warrants writ of habeas corpus.

Key Cases Cited

Davis v. Alaska, 415 U.S. 308 (U.S. 1974) (cross-examination as a means to reveal biases and motives)
Delaware v. Van Arsdall, 475 U.S. 673 (U.S. 1986) (limits on cross-examination must be reasonable and disallow harassment or confusion)
Chambers v. Mississippi, 410 U.S. 284 (U.S. 1973) (preserves right to present a defense against improper evidentiary barriers)
Olden v. Kentucky, 488 U.S. 227 (U.S. 1988) (limits on cross-examination require concrete, articulable rationale)
Redmond v. Kingston, 240 F.3d 590 (7th Cir. 2001) (Confrontation Clause requires assessing admissibility of false-accusation evidence under federal standards)
State v. DeSantis, 155 Wis. 2d 774, 456 N.W.2d 600 (Wis. 1990) (rape-shield balancing factors for admissibility of prior false allegations)
White v. Coplan, 399 F.3d 18 (1st Cir. 2005) (limiting cross-examination of prior false accusations infringes Confrontation Clause when probative)
Davis v. Alaska, 415 U.S. 308 (U.S. 1974) (cross-examination as a primary vehicle to test witness credibility)